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Swiss votation on November 25 2018

by Prof. Markus Kern / Nora Camenisch-Ehinger, University of Bern

On November 25, 2018 three proposals were up for decision by the Swiss electorate. Two of them were pertaining to constitutional change and can be said to be situated at either of the poles of constitutional importance:

The so-called Self-Determination Initiative gave rise to numerous controversial, intensive and lengthy debates both in the political and the legal realm. The core idea of the proposed constitutional amendments was to limit the influence of international obligations on the Swiss legal order by providing for an explicit precedence of Swiss constitutional law over international law. Today, Switzerland being a monist country, any binding international norm becomes an integral part of the Swiss legal order and thus also acquires domestic validity. The Federal Constitution requires both, the Confederation and the cantons, to respect international law (art. 5 para. 4 Federal Const.). However, it does not foresee any further explicit rules with regard to the hierarchy of norms when it comes to international obligations. According to the case law of the Federal Supreme Court, international law generally takes precedence over domestic statutes. However, the Court provides for an exception and a counter-exception to this general rule: If Parliament has deliberately enacted a law that is contrary to international law, these statutory norms generally take precedence – except in constellations of international human right treaties, where international law maintains its supremacy. When it comes to the hierarchical relation between international law and the Federal Constitution, things are somewhat unclear, even though an obiter dictum in a case before the Federal Supreme Court seems to indicate that similar rules of precedence apply.

In this context the initiative aimed: First, at enshrining a general rule that the Federal Constitution trumps over international law with the exception of jus cogens; second, at providing for an obligation to renegotiate existing international treaties violating constitutional law or to terminate these treaties “if necessary”; third at restricting the existing immunization of international law against the control of constitutionality (art. 190 Federal Const.) by limiting this privilege to treaties which were subject to a federal referendum thus stripping all other norms of international law from immunization.

Again both, the Federal Council and the Federal Parliament recommended rejecting the initiative. They argued that its adoption would harm Switzerland’s credibility and reputation as an international partner, that it would create legal uncertainty and instability, that it amounts to an obligation to break international treaties and that it constitutes a solution to a non-existing problem, because the supremacy of the Federal Constitution is already granted in the current legal framework. In a surprisingly clear verdict the majority of the people (66.2%) and the majority of the people in all of the 26 cantons rejected the constitutional proposal. The turnout was 47.7%.

The initiative pursued the objective of increasing or at least maintaining the (steadily decreasing) proportion of horned cows and goats in Switzerland. This was to be achieved by granting federal subsidies to people keeping horned cows and goats. The amount of the financial support as well as the type of financing was left open by the proposed constitutional amendment.

Both the Federal Council and the Federal Parliament recommended rejecting the popular initiative, arguing that it would do more harm than good to animal welfare. As horns increase the risk of injuries, horned cattle is usually kept tethered in the stables. Therefore the initiative, according to the opinion of the Government, may have had the consequence of reducing incentives for loose-housing systems to the detriment of animal welfare. The initiative was rejected by a majority of 54.7% of the people and the majority of the people in 20 cantons. The turnout was 46.7%.

The comments that can be made on the proposal are threefold:

First, this popular initiative is a prime example for the fact that the Swiss Constitution does not foresee any minimal threshold with regard to the importance of constitutional provisions. In the past, the Federal Constitution e.g. contained a provision on the ban of Abstinthe.

At the same time, the initiative also illustrates the fact that the Swiss constitutional framework does not foresee any instrument of direct democratic participation with regard to statutory amendments at the Federal level. Therefore, any proposal – even of comparatively minor importance – at national scale has to take the form of a popular initiative aiming at a constitutional amendment. On the level of the cantons however, the instrument of statutory initiatives exists in virtually every constituency.

Finally, the initiative, which was more or less launched and brought forward by a single person, also goes to show that it is possible for an individual or a very small group of persons not only to attain a high level of political attention, but even to come within the reach of achieving constitutional change.

Finally, there was a third federal vote on a subject related to statutory amendments, namely a decision on a modification to social security law. The statutory amendment was triggered by a decision of the European Court of Human Rights (ECHR): Vukota-Bojić v. Switzerland (Application no. 61838/10). The Court found that Switzerland did not have a clear and detailed legal basis for conducting undercover observations of people suspected to fraud invalidity insurance and accident insurance. As a consequence the Federal Parliament at very short notice elaborated and decided upon new statutory provisions, which could serve as a legal basis for such observations.

A committee of citizens had taken the referendum against the statutory amendment, arguing that in case of enactment of the provisions the scope of action of detectives commissioned by insurance companies would reach further than the powers of the police and the intelligence service. They feared that GPS trackers and drones could be used for surveillance and that video and audio recordings could be made of all publicly accessible locations. The Federal Council and the Federal Parliament countered that observations may only be ordered if there are concrete indications of unlawful receipt of insurance benefits and if the facts of the case cannot be clarified by other means or only with disproportionate effort. According to the intention of the Federal Council and Parliament, for example, no drones may be used to film the interior of an apartment.

The new provisions were welcomed favourably by the electorate – a majority of 64.7% of the people accepted the amendments.